Citation Nr: 0001009
Decision Date: 01/12/00 Archive Date: 01/27/00
DOCKET NO. 97-18 222 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Huntington,
West Virginia
THE ISSUE
Entitlement to service connection for myelitis due to
exposure to ionizing radiation during service.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
W. R. Harryman, Counsel
INTRODUCTION
The veteran had active service from August 1956 to September
1960.
This case came before the Board of Veterans' Appeals (Board)
on appeal from a decision of the Department of Veterans
Affairs (VA) Regional Office (RO) in Huntington, West
Virginia, in February 1997 which found that new and material
evidence had not been presented to reopen the veteran's claim
for service connection for cancer of the epiglottis. During
his appeal of that determination, the veteran applied to
reopen his claim for service connection for myelitis due to
exposure to ionizing radiation during service. By a decision
in May 1999, the Board found that new and material evidence
had been submitted, reopened the claim, and Remanded the case
for the RO to consider the veteran's claim on the basis of
all the evidence of record.
In September 1997, a hearing was held at the RO before C.W.
Symanski, who is a member of the Board rendering the final
determination in this claim and was designated by the
Chairman of the Board to conduct that hearing, pursuant to
38 U.S.C.A. § 7102(b) (West 1991).
FINDINGS OF FACT
1. The veteran's claim for service connection for myelitis
due to exposure to ionizing radiation in service is not
accompanied by cognizable evidence of exposure to ionizing
radiation during service.
2. The claim for service connection for myelitis due to
exposure to ionizing radiation in service is not plausible.
CONCLUSION OF LAW
The claim for service connection for myelitis due to exposure
to ionizing radiation in service is not well grounded.
38 U.S.C.A. § 5107 (West 1991).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Factual background
The veteran's service records do not indicate that that he
participated in any atmospheric nuclear tests or that he was
otherwise exposed to ionizing radiation during service. His
DD Form 214 indicates that he had more than 3 years of
foreign or sea service in the United States Navy, but does
not reflect where that service was. The service medical
records are negative for any complaints, clinical findings,
or diagnosis indicative of myelitis.
In 1983, the veteran was diagnosed with carcinoma of the
epiglottis. He underwent surgical resection and, from
January 1984 to September 1984, radiation therapy.
Private medical records reflect complaints of lower extremity
discomfort and weakness beginning in November 1986. In
December 1986 he was noted to have progressive inability to
walk due to weakness and odd sensations in both legs. In
January 1987, the veteran noted spastic paresis of both lower
extremities. Records dated in December 1986 and January 1987
showed a probable diagnosis of myelitis of unknown etiology.
Also in January 1987 a neurologic consultant diagnosed
probable radiation induced myelopathy. It was noted that the
veteran had been seen by the radiation therapy service at
Duke University, where it was felt that, although his history
was consistent with radiation myelitis, such a complication
would be exceedingly rare at the doses it was believed his
spinal cord had received. A report dated in February 1987
indicated that the veteran was apparently one of the one to
two percent who develop myelopathy in spite of adherence to
strict limits of total dosage exposure to the cord.
Records dated in May 1987 reflect treatment for a urinary
tract infection secondary to neurogenic bladder and myelitis.
In August 1987 a consulting physician opined that the
veteran's neurological condition was not typical of a
radiation induced myelitis.
The veteran was re-evaluated by Duke University Medical
Center in September 1987. At that time his diagnoses
included cervical myelopathy, spastic paraparesis, bladder
dysfunction with urinary retention. Although no definite
etiology for the progression of his cervical myelopathy was
ascertained, radiation induced myelitis was considered a
probable explanation.
In October 1990, the veteran wrote that in service he was
stationed at Iwakoni, Japan, from June 1957 to June 1959. He
stated that during his tour of duty he was in Hiroshima
several times. He reported he was not present during any
tests or bombings.
Progress notes dated in October 1995 indicate that the
veteran was still having difficulty walking due to spinal
cord problems.
Also of record is a January 1997 statement signed by William
L. Harris, M.D., in which the veteran's private physician
related that the veteran had developed myelitis of the spinal
cord resulting in neurogenic bladder and spastic paresis of
the lower extremities after undergoing radiation treatment
for cancer of the throat. He noted the veteran reported
being in Hiroshima within 15 years after the atomic bomb, and
opined that radiation treatment, under normal circumstances
should not have caused spinal cord injury leading to
myelitis. Dr. Harris related he had told the veteran that it
was possible that he had already received radiation, quantity
unknown, while in the service. It was Dr. Harris' opinion
that the previous exposure to radiation could have led to his
poor outcome from the radiation treatment received for
carcinoma of the neck.
The veteran testified in support of his appeal at a personal
hearing before the Board in September 1997. He reported that
the symptoms he associated with myelitis, to include weakness
in the legs, and incontinence of bladder and bowels, had
progressively increased. He testified that while stationed
in Japan in the 1950's he visited Hiroshima as many as 15
times and was present in the area which had been ground zero.
The veteran said that no one ever warned him that there might
be excessive radiation in that area. He also stated that the
doctors who had evaluated him had indicated that the
likeliness of his developing myelitis from the amount of
radiation treatment he received was one in 500.
The private physician who had treated the veteran since 1986
wrote in January 1999. He described the veteran's
neurological clinical findings and the limitations imposed
because of the condition. He did not comment further on the
etiology of the disorder.
Analysis
Service connection connotes many factors, but basically it
means that the facts, as shown by evidence, establish that a
particular injury or disease resulting in disability was
incurred coincident with service in the Armed Forces or, if
pre-existing such service, was aggravated therein.
38 U.S.C.A. § 1131. Such a determination requires a finding
of a current disability which is related to an injury or
disease incurred in service. Watson v. Brown, 4 Vet. App.
309, 314 (1993); Rabideau v. Derwinski, 2 Vet. App. 141, 143
(1992).
Service connection may be accomplished by affirmatively
showing inception or aggravation during service or through
the application of statutory presumptions. 38 U.S.C.A.
§§ 1101, 1112, 1113, 1131, 1137 (West 1991); 38 C.F.R.
§§ 3.307, 3.309 (1999). Each disabling condition shown by a
veteran's service records, or for which he seeks service
connection, must be considered on the basis of the places,
types and circumstances of his service as shown by service
records, the official history of each organization in which
he served, his medical records and all pertinent medical and
lay evidence. 38 U.S.C.A. § 1154 (West 1991). Satisfactory
lay or other evidence that injury or disease was incurred or
aggravated in combat will be accepted as sufficient proof of
service connection if the evidence is consistent with the
circumstances, conditions or hardships of such service, even
though there is no official record of such incurrence or
aggravation during active service. 38 C.F.R. § 3.304 (1999).
For a showing of chronic disease in service there is required
a combination of manifestations sufficient to identify the
disease entity, and sufficient observation to establish
chronicity at the time, as distinguished from merely isolated
findings or a diagnosis including the word "chronic."
Continuity of symptomatology is required where the condition
noted during service is not, in fact, shown to be chronic or
where the diagnosis of chronicity may be legitimately
questioned. When the fact of chronicity in service is not
adequately supported, then a showing of continuity after
discharge is required to support the claim. 38 C.F.R.
§ 3.303(b) (1999).
Additionally, regulations provide that service connection may
be granted for any disease diagnosed after discharge, when
all the evidence, including that pertinent to service,
establishes that the disease was incurred in service.
38 C.F.R. § 3.303(d).
The following diseases shall be service-connected if they
become manifest in a radiation-exposed veteran: (i) Leukemia
(other than chronic lymphocytic leukemia), (ii) Cancer of the
thyroid, (iii) Cancer of the breast, (iv) Cancer of the
pharynx, (v) Cancer of the esophagus, (vi) Cancer of the
stomach, (vii) Cancer of the small intestine, (viii) Cancer
of the pancreas, (ix) Multiple myeloma, (x) Lymphomas (except
Hodgkin's disease), (xi) Cancer of the bile ducts, (xii)
Cancer of the gall bladder. (xiii) Primary liver cancer
(except if cirrhosis or hepatitis B is indicated), (xiv)
Cancer of the salivary gland, or (xv) Cancer of the urinary
tract. 38 C.F.R. § 3.309(d).
The term radiation-exposed veteran means either a veteran who
while serving on active duty, or an individual who while a
member of a reserve component of the Armed Forces during a
period of active duty for training or inactive duty training,
participated in a radiation-risk activity. The term
radiation-risk activity means: (A) Onsite participation in a
test involving the atmospheric detonation of a nuclear
device, (B) The occupation of Hiroshima or Nagasaki, Japan,
by United States forces during the period beginning on August
6, 1945, and ending on July 1, 1946, or (C) Internment as a
prisoner of war in Japan (or service on active duty in Japan
immediately following such internment) during World War II
which resulted in an opportunity for exposure to ionizing
radiation comparable to that of the United States occupation
forces in Hiroshima or Nagasaki, Japan, during the period
beginning on August 6, 1945, and ending on July 1, 1946.
38 C.F.R. § 3.309(d).
In all claims in which it is established that a radiogenic
disease first became manifest after service and was not
manifest to a compensable degree within any applicable
presumptive period as specified in § 3.307 or § 3.309, and it
is contended the disease is a result of exposure to ionizing
radiation in service, an assessment will be made as to the
size and nature of the radiation dose or doses. When dose
estimates provided are reported as a range of doses to which
a veteran may have been exposed, exposure at the highest
level of the dose range reported will be presumed. For
purposes of this section the term "radiogenic disease"
means a disease that may be induced by ionizing radiation and
shall include the following: (i) All forms of leukemia except
chronic lymphatic (lymphocytic) leukemia; (ii) thyroid
cancer; (iii) breast cancer; (iv) lung cancer; (v) bone
cancer; (vi) liver cancer; (vii) skin cancer; (viii)
esophageal cancer; (ix) stomach cancer; (x) colon cancer;
(xi) pancreatic cancer; (xii) kidney cancer; (xiii) urinary
bladder cancer; (xiv) salivary gland cancer; (xv) multiple
myeloma; (xvi) posterior subcapsular cataracts; (xvii) non-
malignant thyroid nodular disease; (xviii) ovarian cancer;
(xix) parathyroid adenoma; (xx) tumors of the brain and
central nervous system; (xxi) cancer of the rectum; and
(xxii) lymphomas other than Hodgkin's disease. For the
purposes of this section: (i) bone cancer must become
manifest within 30 years after exposure; (ii) leukemia may
become manifest at any time after exposure; (iii) posterior
subcapsular cataracts must become manifest 6 months or more
after exposure; and (iv) other diseases specified must become
manifest 5 years or more after exposure. 38 C.F.R. § 3.311
(1999).
Notwithstanding the foregoing, the United States Court of
Appeals for the Federal Circuit, however, has determined that
the Veteran's Dioxin and Radiation Exposure Compensation
Standards (Radiation Compensation) Act, Pub. L. No. 98-542, §
5, 98 Stat. 2725, 2727-29 (1984) does not preclude a veteran
from establishing service connection with proof of direct
causation. Combee v. Brown, 34 F.3d 1039 (Fed.Cir. 1994).
Initially, the Board notes that myelitis is not a radiogenic
disease, as listed at § 3.311. Thus, the procedural
provisions of that section are not for application in this
case. In addition, myelitis is not a disease subject to
presumptive service connection under the provisions of
§ 3.309(d). Moreover, there is no evidence that the veteran
participated in a radiation risk activity, as defined in
§ 3.309(d), and he does not contend that he did. Therefore,
that regulation is not applicable and service connection for
myelitis may not be presumed on any basis.
The Board's analysis must then turn to the question of direct
service connection, pursuant to Combee. The veteran's sole
contention in this regard is that he was exposed to radiation
during his visits to Hiroshima during service in the 1950's.
the only evidence supportive of the veteran's claim is Dr.
Harris' January 1997 statement to the effect that it is
possible that the veteran received some unknown quantity of
radiation in service and that that prior exposure led to the
poor outcome that resulted from the radiation therapy for his
throat cancer.
It is unclear from the record precisely what the basis was
for Dr. Harris' opinion that the veteran was possibly exposed
to radiation in service. However, the record does not
document that the veteran received any radiation exposure
during service. There is no evidence that his mere presence
in Hiroshima on multiple occasions several years after the
atomic bomb explosion in that city resulted in any exposure
to him by ionizing radiation. It should be noted that such
late visits to Hiroshima do not constitute a "radiation-risk
activity," as defined in § 3.309. VA's definition of
"radiation-risk activity" is based on scientific reports
regarding the likelihood that various activities could result
in exposure to ionizing radiation. Inasmuch as the veteran's
claimed Hiroshima visits are not listed as a radiation-risk
activity and considering the total absence of any other
evidence that he was actually exposed to ionizing radiation
during service, the Board find that he was not so exposed
during service.
A person who submits a claim for VA benefits shall have the
burden of submitting evidence sufficient to justify a belief
by a fair and impartial individual that the claim is well
grounded. 38 U.S.C.A. § 5107(a); see also Carbino v. Gober,
10 Vet. App. 507 (1997). A well-grounded claim is "a
plausible claim, one which is meritorious on its own or
capable of substantiation. Such a claim need not be
conclusive but only possible to satisfy the initial burden of
§ [5107(a)]." Murphy v. Derwinski, 1 Vet. App. 79, 81
(1990). In Tirpak v. Derwinski, 2 Vet. App. 609, 610 (1992),
the United States Court of Appeals for Veterans Claims
(Court) held that a claim must be accompanied by supportive
evidence and that such evidence "must justify a belief by a
fair and impartial individual' that the claim is plausible."
For a claim to be well grounded, there generally must be (1)
a medical diagnosis of a current disability; (2) medical, or
in certain circumstances, lay evidence of in-service
incurrence or aggravation of a disease or injury; and
(3) medical evidence of a nexus between an in-service injury
or disease and the current disability. Only the evidence in
support of the claim is to be considered in making that
determination and, generally, a presumption of credibility
attaches to that evidence. Epps v. Brown, 9 Vet. App. 341,
343-44 (1996), aff'd sub nom. Epps v. Gober, 126 F.3d 1464,
1468 (Fed. Cir. 1997); Caluza v. Brown, 7 Vet. App. 498, 506
(1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996)
(table).
The quality and quantity of the evidence required to meet the
veteran's burden of necessity will depend upon the issue
presented by the claim. Where the issue is factual in
nature, e.g., whether an incident or injury occurred in
service, competent lay testimony, including a veteran's
solitary testimony, may constitute sufficient evidence to
establish the claim as well grounded. However, where the
determinative issue involves medical causation or a medical
diagnosis, competent medical evidence to the effect that the
claim is plausible or possible is required.
Evidentiary assertions by the appellant must be accepted as
true for purposes of determining whether a claim is well
grounded, except where the evidentiary assertion is
inherently incredible. King v. Brown, 5 Vet. App. 19 (1993).
However, a claimant would not meet his burden merely by
presenting lay testimony, including his own, as lay persons
are not competent to offer medical opinions. Espiritu v.
Derwinski, 2 Vet. App. 492, 494 (1992). Lay assertions of
medical causation or diagnosis cannot constitute evidence to
render a claim well grounded under § 5107(a); if no
cognizable evidence is submitted to support a claim, the
claim cannot be well grounded. Tirpak v. Derwinski, 2 Vet.
App. at 610-11 (1992).
In this case, the Board finds that scientific or other
documentary evidence is required to establish that the
veteran was in fact exposed to ionizing radiation during
service-evidence which he, as a lay person, is not qualified
to present. Although Dr. Harris' letter states that the
veteran was possibly exposed to ionizing radiation during
service, the Board finds that that opinion-approximately
40 years after the veteran's claimed exposure and apparently
based on the veteran's own report of his exposure-is as
inherently incredible as the veteran's own opinion:
Dr. Harris is not shown to be any more qualified to render a
scientific opinion in this area than does the veteran and the
doctor's opinion does not refer to any scientific evidence to
support such a conclusion. Espiritu.
Accordingly, the Board finds that there is no cognizable
evidence that the veteran was in fact exposed to ionizing
radiation during service. The Board notes that he clearly
now has myelitis and at least one physician has provided some
medical evidence of a nexus between the myelitis and his
claimed in-service radiation exposure. Thus, the first and
third criteria for a well grounded claim have been met, as
set forth by the Court in Caluza and Epps. However, in the
absence of evidence that he was in fact exposed to ionizing
radiation in service, the second criterion, that there be
evidence of in-service incurrence or aggravation of a disease
or injury, has not been met.
Therefore, the Board finds that the veteran's claim is not
plausible and concludes that he has not presented a well
grounded claim for service connection for myelitis due to
exposure to ionizing radiation in service. 38 U.S.C.A.
§ 5107(a).
ORDER
Lacking a well grounded claim, the veteran's claim for
service connection for myelitis due to exposure to ionizing
radiation in service is denied.
C. W. Symanski
Member, Board of Veterans' Appeals